Tuesday, November 18, 2014

State of Plains - by Jessica A. Shoemaker

On this theme of public participation in land use planning and creating community-driven solutions to ecosystem-level challenges, I want to take this post to share a bit more about a particular tool that I have been working on developing called Plainsopoly.  Plainsopoly is a land use simulation “game.”  Participants engage around a large game board made up of an image of a hypothetical landscape that looks similar to, but is not exactly, a real space within the Great Plains region.  We call the hypothetical space of the game the “State of Plains.”  The State of Plains is depicted on the board by an amalgamation of aerial images including the edge of a large city, several small towns, both irrigated and dryland farming areas, the foothills of a larger mountain range, sensitive sandhills habitat, a winding river, and a recognized federal Indian reservation. Participants play the game in small, randomly assigned groups of four to six people and are assisted by a table facilitator.  Players roll the dice, move the game piece to a correspondingly numbered geographic square on the game board, and then answer and discuss an open-ended question that poses a specific land use challenge for that particular space. 

Game Board

The questions are intentionally wide-ranging.  I developed the question set last year with invaluable input and feedback from a great and generous interdisciplinary group of law students, graduate students, professors, and other experts from across the University and beyond.  We incorporated a range of disciplines, including law, planning, natural resources, applied ecology, business, and economics, and as a group, we worked hard to make sure the most difficult and provocative current land use challenges in the Great Plains are incorporated into the game.  (Two of my students, Jerry Jefferson and Preston Peterson, were particularly instrumental in this process.)  In the current question set, there are questions and challenges relating to urban growth; rural depopulation; infrastructure needs; drought and other climate issues; tourism; new energy siting, including fracking, renewables, and transmission line expansion; invasive species control; water quality and quantity; jurisdictional conflicts; and many other topics. 

Game play up closeIn addition to covering a wide spectrum of substantive issues, the questions are designed to touch on four bigger themes: (1) Values (values choices as reflected in land use), (2) Making Connections (who should make decisions about land use and land use planning and at what level), (3) Ecosystem Services (how public benefits from private land, especially environmental benefits, are valued and accounted for in land use ordering and landowner decision-making), and (4) Temporal Perspectives (which timeframe land use planners and landowners should consider in assessing the consequences of any land use decision). These four themes are not explicitly addressed during game play; however, the questions are designed implicitly to provoke thinking and dialogue around these larger issues.

This Plainsopoly project came about only because of Professor Alister Scott and his group’s original idea for a land use planning, decision-making, and visioning game that they call Rufopoly.  Rufopoly is a game focused on the unique landscapes of the rural-urban fringe spaces of Europe, and the themes of our questions grew out of Professor Scott’s work with stakeholders in this context.  In developing Plainsopoly, we collaborated closely with Professor Scott of the Birmingham School of the Built Environment in the United Kingdom and Professor Richard Wakeford, who is currently directing the Kazan Centre in Russia and was previously the Chair of the Organization for Economic Cooperation and Development’s Rural Working Party.

As many readers of this blog may know, the use of games or other simulation exercises is an area of increasing scholarly interest in a range of disciplines, including public engagement and political science studies, natural resource management and applied ecology, psychology, business, and behavioral economics.  (For a few brief examples, particularly in the natural resources sector, you might look here and even here.)  Although our Plainsopoly tool has been used purely for informal discussion facilitating at invited events to date, it may also have broader potential.  My sense is that the game could be used to speed participants’ learning about complex land use interactions and may provoke a valuable period of self-reflection regarding resource and planning challenges across the region.  As one participant in one of the Plainsopoly games at the Rural Futures Conference last year said, the game forced him to think not only about his “little piece of land” but also about everyone else’s lands around him:  “I was forced to give opinions on what somebody else should do with their little piece of land. You have to challenge yourself at that point and say, if it’s good for them, maybe I have to relook at my opinion about others giving opinions about my land. It’s a very interesting way of taking a landowner and suddenly forcing me to reevaluate my position regarding my piece of ground.” Lower platte game

I have also found that the experience of engaging in a shared, civil dialogue around the game table on hypothetical (but still very realistic) topics that are otherwise highly charged and sometimes difficult to discuss (like private property rights, community planning, and actual land use conflicts) may have significant value in and of itself.  There is something very provocative about talking about these actual resources issues in the context of just a slightly modified hypothetical game setting that seems to really liberate people to have a much more open and comfortable conversation on these issues.  If we could effectively shape and harness this, I think games like Plainsopoly and Rufopoly could have very useful applications in assisting particular groups in solving real-world problems or developing consensus around specific planning challenges, and in an action-research model, these games might be used to help inform future policy making.

Second game play

I’ve noticed two big themes in the few times we have played Plainsopoly to date.  First, overwhelmingly, participants envision a land use future focused on a very long-term view of sustainability and a vast appreciation for the non-economic values of natural resources.  At least in this hypothetical space, a vast majority of participants seem to prefer decisions that are not made based on short-term economic gains and that consider not just one square parcel of property but rather look to an entire region’s interlocking resource dynamics.  Of course, in this game space, immediate things like grocery bills and retirement savings accounts do not exist, and the transaction costs of considering issues at a regional level are dramatically reduced.  But still, how do we, or could we, translate what appear to be relatively broadly shared values like this into more actual community action?  

The second major notable point of interest for me, so far, is implicit in how we designed the game, but it also comes up very often in participants’ reactions to the questions.  This relates to the extreme breadth of the range of factors that potentially influence an individual landowner’s decision-making about how he or she uses his or her land.  Often, we might think more simply of land use planning and zoning as the relevant forces; however, the game reminds us that so many different law and policy instruments influence landowners—including, as just a few examples, our crop insurance structures, property tax systems, and energy markets.  A much harder issue is not only how do we develop a shared vision for the future of these shared spaces but, more importantly, how do we execute it?  A persistent theme emerging anecdotally from the game play to date is the way in which top-down strategies have a host of unintended and mix-matched interactions that complicate decision-making and implementation at the ground level.  How do we better coordinate these influences?   

Happily, we have the opportunity to explore the potential of games like Plainsopoly and Rufopoly to address these and other issues in a more concentrated way over the next year or so.  We are just embarking on a new partnership with Professor Scott and several others on a  Knowledge Exchange Opportunities grant that we just recently learned has been approved from the Economic and Social Research Council (ESRC) in the UK.  The goal of the new grant is to learn from the existing models of Rufopoly and Plainsopoly and another sister game in Sweden and think intentionally about all of the possibilities of this kind of planning, visioning, and decision-making tool.  One end goal is to try to develop a flexible resource kit that maximizes the potential of these tools to assist in planning processes and that hopefully is adaptable to a range of settings. 

As I am entering this new work, I’ve become an eager student of some new areas of scholarship.  For example, I’ve been doing some great reading on critical planning theory as it relates to whether we currently include all of the relevant voices in our typical planning processes and how, if we did achieve greater inclusiveness, such careful collective decision-making about the future of our shared spaces may be powerfully transformative.  I have also been looking at the work of others on effective and innovative new governance models.  This list includes, for example, Professor Beth Noveck and The Governance Lab at NYU; the procedural justice and group engagement work of Professor Tom Tyler; and the thinking on deliberative democracies and the capacity for informed “bottoms up” decision-making by Professor James Fishkin and the Center for Deliberative Democracy at Stanford.  It’s all fascinating stuff, which I also read with a healthy and growing awareness of the potential framing influence of the person who poses the questions – as reflected, for example, in the “nudge” work of Professors Cass Sunstein, Richard Thaler, and others. 

I would more than welcome any other thoughts, comments, or ideas as we embark on further work on this endeavor.  I’m eager to see where it takes us.


(This last picture has nothing to do with the game, per se, but it's my little girls running in a preserved prairie not too far from our house.  One of many special places in the Great Plains worthy of some intentional thinking for its future.)

- Jessica A. Shoemaker

November 18, 2014 in Planning, Sustainability, Zoning | Permalink | Comments (0)

Growth Management In Canada - by Deborah Curran

The municipal elections concluded in British Columbia on Saturday night. As I watched the results roll in for my region of Greater Victoria where we have 13 municipalities and a large unincorporated rural area I was unconsciously tallying what kind of leadership would be at the table over the next four years (this will be the first four year local government election cycle in B.C.) to champion the adoption and implementation of the new Regional Growth Strategy (RGS). The current regional plan, renamed for the current process as the Regional Sustainability Strategy, has been surprisingly successful over the past decade - over 90 percent of new development has occurred within the awkwardly named Regional Urban Containment and Servicing Area - due to a number of factors that include a relatively low rate of growth (just over 1 percent), a provincial agricultural land protection regime that limits development on farmland, rural areas that want to stay rural, urban areas that agree to densify to an extent, and available land within the urban containment boundary for a variety of new uses. Metro Vancouver's Livable Region Strategic Plan and new plan Metro Vancouver 2040: Shaping Our Future mirrors this success in a much faster growing region that is more significantly geographically constrained by oceans, mountains and the agricultural land reserve.  

Part 25 of the Local Government Act, enables the local government growth management regime in B.C., the centrepiece of which are these RGS's. As I describe the purpose and effect of RGS I am sure you have heard if before: a regional board may adopt a RGS to guide decisions on growth, change and development. The purpose of a RGS is to “promote human settlement that is socially, economically, and environmentally healthy and make efficient use of public facilities and services, land and other resources” (section 849). A RGS must cover a twenty-year period and must include a comprehensive statement on the future of the region, including the economic, social, and environmental objectives of the governing board in relation to projected population requirements for housing, transportation, regional district services, parks and natural areas, and economic development. It is an agreement between the local governments (municipal and regional) in a region and should work towards a wish list of smart growth goals: avoiding urban sprawl, ensuring development takes place where adequate facilities exist, settlement patterns that minimize the use of the automobile and encourage walking, bicycling and public transit, protecting environmentally sensitive areas, etc. (s.849). Individual municipalities bring their comprehensive plans, called official community plans (OCP), into conformance with a RGS by including a regional context statement in the OCP stating how it will become consistent with the RGS over time (s.866). The bottom line is that these are voluntary plans that have a circuitous impact on local comprehensive plans, which means they are tenuously binding. [And I will not go into the courts' recent treatment of whether or not bylaws are consistent with local and regional plans in this post. I will save that for my next post on the Death of Community Plans].

However, interestingly last time I looked all RGS' in B.C. have urban growth boundaries. They may not be in the right place from a planning perspective, they may simply follow the lines of our provincial agricultural land protection zone, or they may mirror the jurisdictional boundary between private and Crown land, but it seems that the language of urban containment is alive and well in B.C. A line on the regional map that is adopted into each municipal official community plan is also the best type of policy to have in the RGS because it is clear and there is no discretion in its interpretation. Municipalities agree not to extend water or sewer service beyond that urban containment line except where needed to address public health or fire suppression needs.

In contrast, the relatively recent Ontario regime called "Places to Grow" involves provincially-imposed land use plans that were motivated by untenable increases in infrastructure, primarily road, costs in the Greater Toronto region around Lake Ontario. The foundation is the Places to Grow Act, 2005 that allows for the identification and designation of growth plan areas and the development of strategic growth plans. The Growth Plan for the Greater Golden Horseshoe 2006 establishes the modest goal of 40 percent of all residential development occurring annually within designated built up areas, and meeting intensification targets for density based on predicted growth rates for each municipality. Municipalities must achieve intensification and meet intensification targets through their official plans and other documents. The Minister of Public Infrastructure Renewal has established a built boundary for each municipality, and urban growth centres are identified to take much of the new growth. 

The growth management regimes in B.C. and Ontario are an interesting long term study in different legal approaches. In B.C. each RGS is an awkward negotiation between urban and rural municipalities that is facilitated by a regional government. One could argue that such a structure would lead to agreement on the lowest common policies. However, whether unwittingly or not, several of the RGS have proven to be remarkably effective in relation to urban containment. In Ontario the provincial government controversially imposes intensification targets and built boundaries in very large regional plans (the Greater Golden Horseshoe is many hundreds of kilometres deep and wide). Although mandatory and imposed by the provincial government, which raises the ire of local councils, the growth management targets are modest. Perhaps I am spoiled with our 90 percent urban containment rate here in Greater Victoria, but in a North American context intensification of 40 percent is seen as a gold standard as evidenced by the American Planning Association awarding the Daniel Burnham Award for a Comprehensive Plan to the Growth Plan for the Greater Golden Horseshoe (apparently the first time the award has been presented to an organization outside the United States).



November 18, 2014 in Agriculture, Books, Comparative Land Use, Comprehensive Plans, Planning, Sprawl, Suburbs, Zoning | Permalink | Comments (0)

Wednesday, November 12, 2014

More Modern Dance. That's what we need!

I am writing this week from the IUCN's World Park Congress in Sydney Australia. Thousands (at least over 5,000 but they don't have a final count yet) from something like 165 countries are here to work on protecting land  and marine resources (with some thought to the people and critters that live on that land).

The Congress kicked off last night with opening ceremonies that involved welcome speeches from politicians, some videos of beautiful places, some modern and traditional dances and of course some didgeridoo. I really think this is a trend more conferences should adopt! Why don't we have local performers come in or some cool tourism videos of the town. It works best of course when it is followed by a big cocktail party, like the one here.

November 12, 2014 | Permalink | Comments (1)

ELC Responses to the IPCC Report Week One

For those of you who haven't been perusing the Environmental Law Prof's blog, you should wander on over there and check out the continuing response to the latest IPCC reports. Lots of our bloggers are appearing there this month and there should be some interesting food for thought.

Cinnamon Carlarne on Finding the Energy to Mitigate

John Dernbach on Reducing Emissions via Sustainable Development

Robin Kundis Craig tackles sustainable development from another angle.

Shannon Roesler responds to imminent risks and present harms

November 12, 2014 | Permalink | Comments (0)

Contemplations on Mitigation

While not strictly a land use issue (although Matt Festa can easily explain to you that everything is a land use issue), I just posted a short essay I wrote for Ecology Law Currents - the online companion to Berkeley's Ecology Law Quarterly. If you haven't noticed, I am generally obsessed with fascinated by mitigation issues and particularly where we privatize mitigation via land trusts (often with conservation easements). In this essay, I discuss the mitigation regime for wetlands under section 404 of the Clean Water Act and criticize the use of preservation of land as a mitigation technique. This essay is a precursor to a longer book chapter that will appear in theory one day, so comments and suggestions are warmly welcomed.

Here is the official abstract:

Preservation is a Flawed Mitigation Strategy

The objective of the Clean Water Act is to restore and maintain the chemical, physical, and biological integrity of the nation’s waters. To help achieve that objective, the Clean Water Act limits the ability to dredge or fill a wetland. To do so, one must first obtain a section 404 permit. These permits, which are issued by the Army Corps of Engineers (“Corps”) with coordination and oversight from the Environmental Protection Agency (EPA), require project proponents to avoid, minimize, and compensate the harms of any wetland destruction or modification. Compensatory mitigation is a troubling concept in wetlands regulation because it acknowledges wetland destruction will occur. Instead of preventing wetland conversion, developers compensate for wetlands lost. Compensatory mitigation can come in the form of restoration, creation, enhancement, and/or preservation of wetlands and other aquatic resources. This essay urges the Corps to eliminate its use of preservation as mitigation and to improve accountability mechanisms where private organizations, like land trusts and private mitigation banks, remain involved in wetlands permitting programs. As even the EPA acknowledges that preservation results in a net loss of wetlands, preservation is unlikely to compensate for the loss in ecological function from wetlands destruction. Additionally, because private land trusts commonly manage, monitor, and enforce preservation areas, concerns of accountability and democracy arise. Although I focus on the Clean Water Act’s section 404 program, the arguments and lessons discussed here apply to state and local wetland mitigation programs as well.



November 12, 2014 | Permalink | Comments (0)

Destined to be (if not already) Classic Land Use Law Books from Canada - by Deborah Curran

I often reflect on the paucity of academic interest in land use in Canada. A quick search of the legal literature on Canadian land use returns very little scholarship. In fact, there is virtually none. Even when taking into account Canada's tenfold smaller population than the Unites States, we do not have nearly the per capita academic power attuned to the regulation of land, particularly in the local government context. When I have organized panels with three of us (that is, three of the four legal academics in Canada who write regularly on land use issues), I joke that it is relatively inexpensive to assemble 75 percent of the academic land use expertise in Canada.

One could query whether this is due to an absence of land use conflicts. Big country, few people, lots of land over which to spread. However, given that more than 80 percent of the population is squished within 100 kilometres of our southern border with the United States and that the most populous regions - Greater Vancouver, Toronto and Montreal - are geographically constrained, that argument fails. Vancouver is bordered by mountains, ocean, and the Agricultural Land Reserve, a provincial zone that prohibits non-farm uses on Classes 1 to 5 soils (more on that this month - one of the longest standing, if not the oldest farmland protection regimes in North America and very successful in the rapidly urbanizing regions of British Columbia that are also squarely within an international land market) Toronto is constrained by Lake Ontario and the best farmland in Canada (not such a great farmland protection story there, but the Province of Ontario is working on it). Montreal is an island in the St. Lawrence River.

So if the argument that we are lacking land use conflicts in Canada fails, why is there so little legal scholarship in this area? Unfortunately I believe it has more to do with the regulation of law schools and the drastically fewer legal academics in general in Canada when compared to the United States. All of the law schools in Canada are accredited by the Federation of Canadian Law Societies and each individual provincial law society. Until recently, there had been no new law schools opened in Canada in over a decade. In British Columbia, although we receive over 1000 applications for 105 places at the University of Victoria, the B.C. government has capped our enrollment for as long as I can remember...but I digress.

Back to land use scholarship in Canada. Before reading any further, name one Canadian academic writing on land use in Canada... Good for you! I bet you thought of one of my favourite colleagues, a few of whom I profile in this post. Not only is their work brilliant but they are very interesting people with whom to spend an evening. If you ever have the pleasure of Mariana Valverde's company in Toronto or elsewhere be sure to ask about the Rob Ford era. Likewise, when in Vancouver it is a treat to discuss any aspect of the history of land use in that wonderful city with Doug Harris or Nick Blomley. I have chosen a few books and topic areas that have made a difference to me in my work and that will stand the test of time as classics in Canadian legal land use literature. In no particular order:

Mariana Valverde's newish book, Everday Law on the Street: City Governance and the Challenge of Diversity is the result of five years of empirical research in Toronto attending public meetings and meeting with those involved to evaluate how the City of Toronto employs various legal tools such as zoning and business licencing bylaws. Mariana (Center for Criminology and Sociolegal Studies, University of Toronto) shows how the aspiration for diversity as expressed through law and policy is often thwarted by local politics. A prolific and interdisciplinary legal, social and political theorist, Mariana's work on land use spans the empirical-theoretical spectrum and is truly awe inspiring.

A geographer by trade but not limited in expertise, Nick Blomley (Department of Geography, Simon Fraser University) is clearly one of the heavyweights of law and geography studies, and is well recognized as a founder and leader in Canada. His expansive view of the systemic impact of law on space is breathtaking. While prolific, I describe here two books that are essential reading. Nick's classic is Unsettling the City: Urban Land and the Politics of Property, a wide-ranging discussion of the geographies of property discussed through the particularities of the City of Vancouver. Nick is also a co-editor of the just-published The Expanding Spaces of Law: A Timely Legal Geography (with Irus Braverman, David Delaney and Alexandre Kedar, Stanford University Press) that canvasses the current field of legal geography. Although I am eagerly awaiting its arrival to my mail slot, apparently "[i]t guides scholars interested in the law-space-power nexus to underexplored empirical sites and to novel theoretical and disciplinary resources...[and] asks readers to think about the temporality and dynamism of legal spaces".

The only non-academic in this list, Pamela Blais (Principal, Metropole Consultants Ltd.) has sought to daylight the cost of development in the Greater Toronto region over the past decade. This task of defining the "cost of community services" is well established in U.S. communities but for some reason we still do not include it as a regular part of the project- or plan-specific analysis about the costs and benefits of land development in Canada. Pamela's book, Perverse Cities: Hidden Subsidies, Wonky Policy and Urban Sprawl is the only systematic Canadian analysis of the "market distortions and flawed policy that drive  sprawl". Pamela offers a sound critique of typical comprehensive and infrastructure planning, and provides direction for correcting market-oriented mis-incentives. 

Finally, arguably the fulcrum of land use scholarship and activity in Canada is Doug Harris (Faculty of Law, University of British Columbia). Doug was instrumental in hosting the Association for Law, Property and Society annual meeting in Vancouver, and the first time in Canada, earlier this year, and he provides us with deeply historical and thorough scholarship on two very different aspects of land use. His most well-known work is in the area of aboriginal law. Doug's first book, Fish, Law and Colonialism: The Legal Capture of Salmon in British Columbia, details the impact of fishing regulation on not only salmon as a fisheries resources but how it had an impact on the placement of communities and the expression of the aboriginal right to fish as part of governance, government and property in indigenous communities in B.C. His second book details the settlement of Indian Reserves and the impact of that process on aboriginal fishing rights in B.C. Called Landing Native Fisheries: Indian Reserves and Fishing Rights in British Columbia, 1849-1925, Doug "maps the connections between colonial land policy and law governing fisheries...rewrit[ing] the history of colonial dispossession in British Columbia".

Doug's other area of scholarship is urban land use and land titles, and we are eagerly awaiting a book on strata property and condominiums. Although no publication information is available, I will put in an advance plug because it will be the definitive statement in Canada on strata property and its host of issues for a long time to come. Doug started exploring strata through a project on the history of the rise of condos in Vancouver and is carrying on with the topic through a seminar at UBC. There are journal articles trickling through the academic scholarship pipeline, and I am just putting it out there that there are at least two of us who cannot wait for the book.

Looking back at this list, although I went on at length about how few legal academics there are in Canada who focus on land use I will boldly say that these four people and their scholarship will give you a good start in the Canadian realm and will encourage you to delve further into that polite land use arena that is Canada.


November 12, 2014 | Permalink | Comments (0)

Tuesday, November 11, 2014

Reactions to the Lower Platte River Summit - by Jessica A. Shoemaker

Following up on my introductory post, I was fortunate to get to help facilitate the biannual summit of the Lower Platte River Corridor Alliance (LPRCA) last week. The Alliance is a unique organization composed of three Natural Resource Districts and six state agencies in Nebraska. It aims to work “with people to protect the long-term vitality of the Lower Platte River Corridor” (an area that includes “the Lower Platte River, the bluffs, and adjoining public and private lands located within the floodplain” for approximately 100 miles along the river from Columbus to Plattsmouth). The Lower Platte faces both supply and water quality issues. The river traverses unique rural landscapes and also bisects the expanding Omaha-Lincoln metropolitan areas. It provides water for important agricultural and mining uses in the region, and it is also supplies drinking water for over half of Nebraska’s population. (For more information, look here.)

For me, one of the most unique and important aspects of the Alliance is its focus on supporting locally drawn solutions and strategies to protect the river and the surrounding landscape, especially in the face of great demographic changes. My experience at the summit has me thinking more about my ongoing interest in the role of public participation in complex land use and resource management issues, like planning for the long-term sustainability of this important watershed.

Getting out of the office and elbow deep into some of the real-world debates about the future of the Corridor (where I not only work but also live) was invaluable to me. In many respects, I learned more in one day discussing shelter belts, crop insurance, trail development, Main Street facade improvements, property tax systems, and various potential models for valuing ecosystem services with such a diverse group of landowners, agricultural producers, conservationists, advocates, and government officials, than I probably could have from many days in a library. Somewhat unexpectedly, the primary takeaway for me was some renewed perspective about the role of legal solutions in what are often really ecosystem-level social problems. Although I spend most of my days analyzing and trying to craft legal solutions to real-world problems, back on the ground things looked a little different.

For example, Chuck Schroeder, Executive Director of the Rural Futures Institute (RFI), started the day with a keynote about the resiliency of rural communities within the Corridor and beyond. At one point, he told a story about a small town community working hard on some marketing and revitalization efforts that had struggled to address a blighted property located right at the entrance to the downtown area. The mayor, according to Chuck, complained to two undergraduate students interns (there for the summer as part of an RFI-funded teaching grant for service learning) about this eyesore house and how all their town’s marketing efforts might be undercut if a visitor’s first impression was this dilapidated house and junk-filled yard. Chuck said the mayor and town had tried “everything” to address the house to no avail, but my ever-legal lawyer mind immediately started ticking off other possible legal solutions to the problem: nuisance claims, aesthetic zoning regulations, condemnation, code enforcement, tax enforcement, etc.  My issue-spotting lawyer brain was so occupied checking off possible legal procedures that I almost missed the punchline of Chuck’s story. Although the mayor and the town had not had success communicating with the home’s owner about the issue in the past, Chuck said the two student interns took it upon themselves to walk up to the landowner’s door and offer to help him sell the stacks of tires on his  lawn and recover some cash for them…. The homeowner, pleased with the result and liking the student interns who helped put some money in his pocket, then proceeded to let the interns and some other community volunteers engage in additional clean up work around the house. Problem almost immediately solved.

It’s a simple story, but for me an important reminder. In my rush to legal analysis, my instinct was not to consider first what might motivate the landowner to fix the problem himself or what may be standing in the way of him doing so. Or how public engagement in the clean up process might be the most efficient and simple solution, while also likely creating a host of other intangible community benefits.

I was also struck at the summit by how many examples there were from stakeholders actively working on land use challenges within the Corridor of the law working more as an obstacle to progress than as an opportunity or useful tool. These people who do the daily work of trying to make the Corridor a better place seemed incredibly competent and intelligent, but in many cases, they described to me very specific instances where well intentioned laws were getting in the way of actually achieving the desired results (e.g, too much bureaucracy, cumbersome procedures, agency rules that didn't make sense).  I heard complaints of the persistent problem of top-down policies and priorities being implemented in ways that are not fully matched up on the ground or that create unintended inefficiencies or obstacles.

This isn’t universally the case. For example, we visited a family farm along the river outside of Omaha where an innovative conservation easement has been created in coordination with the Nebraska Land Trust. The family, at least, said they felt very satisfied that the legal tool of the easement had satisfactorily addressed their concerns in the face of “houses coming over the hills.” 2014-11-06 14.00.39

(Photo: Dave Sands, Executive Director of the Nebraska Land Trust, discusses his organization’s conservation easement work within the Corridor at the site of one of these easements.)

However, the theme that there are limits on the ability of the law to respond perfectly or exclusively to the complex land use challenges in the Corridor--including how we will value and protect a range of ecosystem services in the face of growing populations and a changing climate--lingers.  Of course, these watershed issues are more complex than one junked property with too many tires in the lawn and more difficult to respond to than the threat of new development around a historic farm that an entire family agrees should be preserved. However, after this summit experience, I look forward to more thinking and engagement around the issues of (1) how law and policy can be better designed with real feedback from, and attention to, the on-the-ground realities of the people working in the trenches and (2) the proper mix of legal and non-legal responses to challenges like the longterm vitality a fragile ecosystem, and especially the role of public participation in designing and implementing these varied solutions.

- Jessica A. Shoemaker

November 11, 2014 in Agriculture, Conservation Easements, Development, Land Trust, Planning, Water | Permalink | Comments (0)

Friday, November 7, 2014

Sabin Colloquium on Innovative Environmental Law Scholarship: March 1 entry deadline


This 3rd Annual Sabin Colloquium will allow junior environmental law scholars to present early-stage work and receive constructive feedback from a panel of senior scholars and from each other.   

Eligible applicants are pre-tenure professors, fellows, visiting assistant professors, and other junior scholars in similar academic positions.  Papers on environmental law, energy law, natural resources law or water law are eligible. No junior scholar may participate in the Colloquium more than twice.  

The panel will select the proposals for discussion based on the degree of innovation they exhibit, the extent to which they point toward practical solutions to environmental problems, and whether, based on the scholarly and analytical quality of the proposals, they are likely to lead to high-quality work products.   

To enter, please submit a cover letter, an outline or concept paper of 5 -15 double-spaced pages, and a C.V. to sabincolloquium@law.columbia.edu by March 1.  If an article has already been drafted, please just submit a summary of no more than 15 pages.  Footnotes are not expected.  Articles that have already been accepted for publication are not eligible. This event is for early-stage work that can still be significantly shaped by the discussion at the Colloquium.  

Authors of selected papers will be notified by March 30.  All Colloquium participants will be expected to participate in the full program (the afternoon and evening of May 21, and all day on May 22) and to read and comment on each others’ proposals.  Thanks to the generosity of Andrew Sabin, the travel costs of all participants will be reimbursed.

The senior scholars who will be judging this year's competition and participating in the workshop will be:

Jason Czarnezki -- Pace Law School

Michael Gerrard -- Columbia Law School

Lisa Heinzerling -- Georgetown Law School

J.B. Ruhl -- Vanderbilt Law School

James Salzman -- Duke Law School

November 7, 2014 | Permalink | Comments (0)

Nov 13-14: Idaho Symposium on Energy in the West: Transmission & Transport of Energy in the Western U.S. & Canada: A Law & Policy Road Map to 2050

Come and join us for our inaugural energy law conference here at the University of Idaho College of Law, either in the beautiful Wood River Valley or live on the Internet.  All times Mountain.

A Final 1 Color Logo
 Inaugural Idaho Symposium on Energy in the West

2014 Symposium Topic 

Transmission & Transport of Energy in the Western U.S. & Canada: A Law & Policy Road Map to 2050

November 13-14, 2014

Sun Valley Inn & Conference Center

Sun Valley, Idaho

 The symposium will also be broadcast live on the Internet with real-time question-and-answer capabilities.  The live broadcast will be freely available here on the day of the conference.




7:30 a.m.

Registration Opens


8:00 a.m.



8:30 a.m.   

Welcoming Remarks

Mark Adams, Dean, University of Idaho College of Law

Barbara Cosens, Professor of Law, University of Idaho College of Law

Stephen R. Miller, Associate Professor, University of Idaho College of Law

Michael Hagood, Director, Program Development, Energy and Environment Science and Technology, Idaho National Laboratory


9:00 a.m.

Energy Infrastructure Choices:  Panel I

Embedded Choices, A Resilient Legal Architecture, Sam Kalen, Professor of Law; Co-Director of the Center for Law and Energy Resources in the Rockies, University of Wyoming College of Law

Avoidably Lost: How Changing Flaring Rules May Influence the Expansion of Natural Gas Transportation and Storage Infrastructure in the West, Tara Righetti, Assistant Professor of Law, University of Wyoming College of Law


10:15 a.m.



10:30 a.m.

Energy Infrastructure Choices:  Panel II

Wind Scattered Resources, K.K. Duvivier, Professor of Law, University of Denver Sturm College of Law

Unnatural Monopolies:  Utilities and the Market for Rooftop Solar, Troy Arthur Rule, Professor of Law, Senior Sustainability Scholar, Global Institute of Sustainability; Faculty Fellow, Center for Law, Science, and Innovation, Arizona State University Sandra Day O’Connor College of Law

Renewables: Can you have too much of a Good Thing?, Donald L. Howell, Chief Legal Counsel, Idaho Public Utilities Commission,


11:30 a.m.

Morning Panel Discussion


12:00 p.m.



1:00 p.m.

The Potential Impacts of Section 111(d)'s Clean Power Plan

Melissa Powers, Associate Professor of Law, Lewis and Clark Law School (remote)


1:45 p.m.

Western Regional Energy Planning:  Panel I

Promoting Renewable Energy Development on Public Lands, Nick Lawton, Staff Attorney, Green Energy Institute, Lewis & Clark Law School

The Clean Power Plan: Implications for the Western Grid, Amelia Schlusser, Staff Attorney, Green Energy Institute, Lewis & Clark Law School

Avoiding Transmission Costs through Distributed Generation and Community-Scale Renewable Energy, Kyra Hill, Energy Fellow, Green Energy Institute, Lewis & Clark Law School

'Utility 2.0' Reforms in Hawaii and New York: Implications for the Western Electricity Industry, Nate Larsen, Energy Fellow, Green Energy Institute, Lewis & Clark Law School


3:30 p.m.



3:45 p.m.

Western Regional Energy Planning:  Panel II

The Northwest Power System and Regional Power Planning: The Seventh Northwest Conservation and Electric Power Plan, John Fazio, Senior Power Systems Analyst, Northwest Power and Conservation Council

Energy Imbalance Markets and Electricity in the West, David Solan, Assistant Professor,  Boise State University Department of Public Policy and Administration; Director, Energy Policy Institute; Associate Director, Center for Advanced Energy Studies


5:00 p.m.

Concluding remarks









Details on the 2014 Symposium Topic 

Transmission & Transport of Energy in the Western U.S. & Canada:  A Law & Policy Road Map to 2050

This inaugural meeting of the Idaho Symposium on Energy in the Westseeks to provide a forum to investigate the future of basic—but vital—legal questions arising from western U.S. and Canadian energy production.  This return to basics is precisely to envision, and re-envision, the long-term infrastructure investments that the dramatic rise in energy production in the west now necessitates.  Three baseline questions guide the meeting:  What is the market demand for western energy?  Where is energy produced in the west?  How is energy transmitted and transported in the west?  After establishing this baseline in key western energy sectors, speakers will then provide a 2050 vision for each of these baseline questions, as well as a road map for how that future might, or should, be shaped by law and policy.  The meeting is also expected to result in the production of short essays on the meeting topic, which will be published in the 2015 Idaho Law Review’s Natural Resources and Environmental Law edition.  

Registration and CLEs / MCLEs 

Registration for the event costs $95 and includes all meals and materials. The payment can be paid in advance at www.uirsvp.com

7.5 CLE / MCLE credits are available for in-person attendance by attorneys licensed by the state bars of Idaho; Montana; Nevada; Oregon; Washington; and Wyoming.  In addition, attorneys licensed in all of the above states can receive CLE / MCLE credits by watching the conference’s live Internet stream with real-time question-asking features, paying the registration fee, and verifying that the attorney watched the event afterwards.  An application is pending for in-person attendance CLEs for attorneys licensed by the Utah State Bar.  For more information on watching remotely and receiving CLE / MCLE credits, e-mail Neil Luther at nluther@uidaho.edu.

About the Symposium Series

The Idaho Symposium on Energy in the West is a new collaboration between the University of Idaho, College of Law’s Natural Resources and Environmental Law Program, the Center for Advanced Energy Studies at Idaho National Laboratories (CAES), and the Energy Police Institute at Boise State University.  The collaborators intend to hold the Symposium on an annual basis.  In the 2014-15 academic year, and every other academic year thereafter, the Symposium be a large, public-facing event suitable for scholars, industry professionals, and practicing lawyers.  Continuing legal educations credits will be available both through in-person attendance as well as through an Internet broadcast of the event.  In the intervening years, the intention is that the Symposium will convene primarily as a scholars’ event with a goal of providing a collaborative environment to advance law and policy scholarship on energy issues in the western U.S. and Canada.  Funding for the Symposium is generously provided by CAES.

November 7, 2014 | Permalink | Comments (0)

Wednesday, November 5, 2014

Come to Buffalo!

The Baldy Center for Law & Social Policy here at Buffalo has just opened applications for our fellowship program and a new post doc position. We started this a few years ago and it has been successful (and fun). There are positions for people at different stages of their academic careers:


The Baldy Center for Law & Social Policy at the State University of New York at Buffalo plans to award several fellowships for 2015-16 to scholars pursuing important topics in law, legal institutions, and social policy. Applications are invited from junior and senior scholars from law, the humanities, and the social sciences.

Fellows are expected to participate regularly in Baldy Center events, but otherwise have no obligations beyond vigorously pursuing their research. Fellows receive standard university research privileges (access to university libraries, high-speed Internet, office space, computer equipment, phone, website space, working paper series, etc.) and are encouraged to develop collaborative research projects with SUNY Buffalo faculty members where appropriate. Those who wish to teach a course to aid their research or gain teaching experience can be accommodated on a case-by-case basis.

Post-Doctoral Fellowships are available to individuals who have completed the PhD or JD but have not yet begun a tenure track appointment. Post-Doctoral Fellows will receive a stipend of $40,000 and may apply for up to $2000 in professional travel support. For 2015-16 the Baldy Center also plans to co-sponsor one post-doctoral fellowship focused on the Transnational Business Interactions Frameworkwith York University. Further information on this fellowship is available below.

Mid-Career and Senior Fellowships are available to established scholars who wish to work at the Center, typically during a sabbatical or research leave. Awardees will receive a living expense allowance of $1,500 per month during the period of their residence.

Application materials include:
(1) a description of the planned research (question, conceptual framework, method, possible findings, importance to the field),
(2) a complete academic and professional resume,
(3) an academic writing sample,
(4) the names and contact information of three academic references (no letters yet), and
(5) if a mid-career or senior applicant, the time period during which the applicant would work at the Center. Completed applications are due no later than February 2, 2015. (Apply by clicking the button below). For further information, see our answers to frequently asked questions. Additional questions about the Baldy Fellows Program should be addressed to Assistant Director Laura Wirth,baldyassistantdirector@gmail.com or (716) 645-2581.
Primary criteria for selection include intellectual strength of the proposal, demonstrated academic achievement, and promise of future success. Additional considerations include the overall mix of topics, disciplines, and backgrounds of the selected group of fellows.
For information on current and past Baldy Fellows, see the Baldy Center website.

The Baldy Center for Law & Social Policy is an endowed, internationally recognized institute that advances interdisciplinary research on law, legal institutions, and social policy at the State University of New York at Buffalo. More than 200 faculty members from numerous SUNY Buffalo departments participate in Baldy Center research, conferences, consortia, and publications. The Center maintains cooperative ties to other research centers and hosts distinguished scholars from around the world as visitors, fellows, speakers, and conference participants.

November 5, 2014 | Permalink | Comments (0)

The ELC Responds to the IPCC Reports

Greetings Loyal Readers

Although Stephen and I haven't been talking about it very much, we are proud members of the Environmental Law Collaborative, a group of environmental law scholars whose goal is to meet and work collaboratively to discuss and offer solutions for environmental law’s major issues of the day. We meet every other year to tackle a thorny environmental problem as a group and to ruminate and strategize on what we as academics can do to ameliorate some of the environmental ills of the world. Our first session was about sustainability in the age of climate change and we the group published a series of essays/blog posts (with essays from Michael Burger, Elizabeth Burleson, Rebecca Bratspies, Robin Kundis Craig, Alexandra Harrington, Keith H. Hirokawa, Sarah Karkoff, Katrina Kuh, Stephen Miller, Jessica Owley, Patrick Parenteau, Melissa Powers, Shannon Roesler, & Jonathan Rosenbloom – republished in Rethinking Sustainability to Meet the Climate Change Challenge43 Envtl L. Rep. News & Analysis 10342 (2013)) , and we are eagerly awaiting the appearance in print of our ELI published book on the topic.

In July 2014, the group (now comprised of Sarah J. Adams-Schoen, Cinnamon Carlane, Robin Kundis Craig, John C. Dernbach, Keith H. Hirokawa, Alexandra B. Klass, Katrina Fischer Kuh, Stephen R. Miller, Jessica Owley, Shannon Roesler, Jonathan Rosenbloom, Inara Scott, and David Takacs) met in Jackson Hole, Wyoming, to turn a critical eye to the recent reports of the three working groups of the Intergovernmental Panel on Climate Change (IPCC). On September 27, 2013, the IPCC’s Working Group I released its report, Climate Change 2013: The Physical Science Basis, which concluded, with 95% confidence, that climate change is occurring and humans are causing it. Working Groups II and III followed with their reports in 2014—respectively, Climate Change 2014: Impacts, Adaptation, and Vulnerability and Climate Change 2014: Mitigation of Climate Change. Collectively, these three reports constitute the IPCC’s Fifth Assessment Report (“AR5”).

At the 2014 meeting of the Collaborative, participants used the IPCC’s Fifth Assessment Reports as texts through which to discuss how issues of climate change are presented and, moreover, what is missing from that presentation. In that review, the Collaborative found that not everything was fully accounted for, even in the three massive working group reports. With a particular concentration on the three working group Summaries for Policymakers, the Collaborative decided to use the Fifth Assessment Report as a springboard for discussing the relationship between environmental science, environmental and natural resources law and policy, and the social issues that arise where those two meet.

After the discussion, we all had many ideas about how the empirical claims generated by the IPCC should be translated into normative claims. We explored these ideas by choosing an excerpt from one of the Summaries for Policymakers—each excerpt an empirical claim—and writing a normative response to that claim. We wrote essays memorializing the proceedings of this collaboration and, together, offer a collection of normative lenses that can be held up to the IPCC Fifth Assessment’s empirical claims. We view these essays as jumping off points for deeper discussions and action by the environmental law community and, potentially, even as a way to conceptualize the framework for IPCC’s Sixth Assessment. These essays are appearing at a propitious time because a few days ago, the IPCC released its synthesis report. While our group did not have the benefit of the synthesis report when writing our essays, you'll quickly see that they address pressing concerns that arise with the report and with measures to mitigate andadapte to climate change.

These essays are now appearing on our sister blog: Environmental Law Profs (ELP), with essays appearing throughout the month and wrapping up before Thanksgiving. The essays will be published together in the January 2015 issue of ELR. Instead of simply cross-posting the essays here on Land Use Profs (LUP), each week I will give you the titles and links to the posts on ELP.

For now, you can visit ELP for a fuller introduction to the project and the ELC.

November 5, 2014 | Permalink | Comments (0)

Job Posting: Land Use Planning Prof at PSU


Assistant/Associate Professor

Nohad A. Toulan School of Urban Studies and Planning

College of Urban and Public Affairs

Portland State University


The Toulan School of Urban Studies and Planning invites applicants for a tenure-line faculty position.  We seek an individual with expertise in land use planning, regional planning, growth management and related fields. Applicants should have a Ph.D. in urban and regional planning or other appropriate disciplines at the time of application or be able to provide assurance of completion of a Ph.D. prior to appointment.

Successful candidates will have a high level of skill, interest, and experience in land use planning, plan making, methods, plan implementation and planning practice. We are especially interested in candidates whose current and/or proposed scholarship includes a focus on state-level land use systems, such as the Oregon Statewide Land Use Planning program. The new faculty member will be expected to play an active role in the development of a new Urban Planning Institute that will lead discussions about emerging and persistent challenges in urban planning in the city, region, and state. 

Teaching responsibilities may include conventional, online and hybrid undergraduate and graduate courses. The successful candidate will be expected to advise master and doctoral level students, to pursue an active research agenda and to attract external funding in areas related to land use planning. Candidates with substantial professional experience as planners are strongly encouraged to apply and to describe how that experience informs their scholarship, teaching, and engagement.

The review of applications will begin December 1, 2014, and the position will remain open until filled.  Applications should include a c.v. and a letter articulating the applicant’s research, teaching and engagement agenda. Materials should be submitted electronically on the PSU HR website: https://jobs.hrc.pdx.edu/. We prefer PDF files, and filenames should begin with the applicant’s last name (e.g., Bates_application.pdf).  Inquiries (but not materials) can be directed to Professor Lisa Bates, Search Committee Chair, at lkbates@pdx.edu.

The Toulan School of Urban Studies and Planning is one of three academic units in the College of Urban and Public Affairs at Portland State University. We offer a B.A./B.S. in Community Development, Master of Urban and Regional Planning, Master in Real Estate Development,  Master in Urban Studies and doctorates in Urban Studies and Regional Science, as well as graduate certificates in Transportation, Urban Design and Real Estate Development.  Finally, dual degree pathways for students interested in both MURP and either MPH or M. Eng. degrees are available. 

Portland State University is a nationally acclaimed leader in community-based learning.  The campus is located along the tree-lined South Park Blocks of downtown Portland.  The University enjoys close working relationships with state, regional, and local governments, private consultants, and progressive and innovative community-based groups.  The Portland region, the state of Oregon, and the Pacific Northwest have received international recognition for their advances in planning and community livability.  Planning in and for this region is accessible and transparent to scholars hoping to make substantial contributions to the field through their work.

In keeping with the President’s diversity initiative, we encourage applications from a diverse range of candidates especially those who are excellent at working cross-culturally or with diverse groups (students and publics). We recognize that diversity maximizes our potential for creativity, innovation, educational excellence and outstanding service to the community. Portland State University supports equal opportunity in admissions, education, employment, housing, and use of facilities by prohibiting discrimination in those areas based on age, color, disability, marital status, national origin, race, religion or creed, sex or gender, gender identity or gender expression, sexual orientation, veteran status, or any other basis in law.

November 5, 2014 | Permalink | Comments (0)

Tuesday, November 4, 2014

Greetings from Nebraska!

Thank you for the chance to guest post here on the Land Use Prof Blog. As Jessie mentioned, my current research agenda is focused primarily on the intersection of property law and federal Indian law. I’m actively exploring how the unique property frameworks that have been applied in a top-down fashion to American Indian lands over the years have disproportionately limited the abilities of Indian landowners and tribal governments to make flexible and efficient uses of their own resources and how this, in turn, is negatively impacting the health and vibrancy of many indigenous communities today. I’m really looking forward to sharing more of my work on these American Indian land tenure issues and how this all relates to the broader land use theme of this blog over the next month.

In the meantime, though, I’m also just this week participating in some real boots-to-the-ground land use planning work here in Nebraska that may also be of interest to this group (and that I would love comments and feedback on as we go). As Jessie also mentioned, in addition to my more traditional law professor responsibilities at Nebraska, I get to participate in some outreach-oriented work with an actively expanding university-wide effort here called the Rural Futures Institute ("RFI" or the “Institute”). This Institute, though new, has done some really interesting things in a short time (see, for example, recent grant awards and conference proceedings) and is working to be a local, state, regional, and even global leader “for increasing community capacity as well as the confidence of rural people to address their challenges and opportunities, resulting in resilient and sustainable rural futures.” You can read more about RFI’s official mission, vision, and core values here. In my own words, though, I see the Institute as charting new territory in really re-committing to the University’s original land grant purpose and working to create a two-way bridge between the resources of the University as a powerful teaching and research institution and the resources of rural communities, with their own invaluable local knowledge and expertise about both challenges in need of innovative solutions and opportunities that may be expanded and from which important learning can come. RFI focuses on being as community-driven as possible and defines community success broadly (i.e., not just economic indicators but also looking to other critical elements of community life, such as art, culture, health, education, and longterm security and sustainability).

My own view is that land use—and all the complex factors that influence how individual landowners make decisions about using their land and natural resources—is at the crux of a lot of the issues around how we create positive futures for rural landscapes and rural communities. This week I will be exploring that theme directly as I moderate a plenary panel at the Lower Platte River Summit, an event sponsored biannually by the Lower Platte River Corridor Alliance, on Thursday. The theme this year is “Urban Grown – Rural Resiliency.” I’m looking forward to talking to a variety of experts about balancing growth and sustainability along the Lower Platte, with its unique resource issues and mix of urban and rural places. The panel includes local landowners, a water quality and public health professor, a real estate developer, agricultural producers, and a National Park Service program director who helps communities develop recreational trails in places like the Lower Platte River Corridor. I'm also looking forward to the Summit's afternoon bus tour of real properties along the Corridor that raise interesting land use issues, including a farm with a unique set of conservation easements in place and a small town doing its best to bridge its historical traditions with modern development in light of some encroachment pressure from the Omaha metro.

I expect it will all be fantastic fodder for further work and thought, and I look forward to sharing some observations and reactions to the discussions around land use at the Summit this week. However, I also plan to tell you about one other project that I’ve been doing with RFI and that I’ll be using as a discussion tool and interactive exercise at the Summit: a land use simulation “game” we’ve developed called Plainsopoly. Plainsopoly is experienced truly as a game in which participants engage around a large game board image of a hypothetical landscape and roll dice to answer a series of real-world (but still hypothetical) land use visioning challenges. An interdisciplinary group of students and professors from across the University, including from law, natural resources, applied ecology, business, and agricultural economics, helped me develop this as a discussion tool last year, and we worked in conjunction with a group from Birmingham City University in the United Kingdom to adapt Professor Alister Scott's original idea for this kind of planning game (what they call RUFopoly for its focus on the Rural Urban Fringe (i.e., RUF) space in Europe). So far, I’ve only piloted Plainsopoly for the purpose it will be used again this Thursday: as a discussion facilitator at conference-type events. However, it has gotten very positive feedback for its potential to improve stakeholders’ engagement around land use issues, open civil dialogue, and speed participants’ learning around land use management challenges and opportunities. Like my colleagues in the UK, I'm interested in thinking further about whether this kind of tool may have future applications for conflict resolution, consensus building, or even real-world planning and policy development.

I’ll look forward to telling you more about the Summit and about this Plainsopoly exercise over the next week or so and then also to turning to the Indian land tenure issues later in the month.

- Jessica A. Shoemaker

November 4, 2014 in Agriculture, Community Economic Development, Comparative Land Use, Development, Planning, Sustainability, Water | Permalink | Comments (0)

Land Use in Canada - Where "Extensive and Restrictive Land Use Regulation is the Norm" by Deborah Curran

Greetings from Canada where most of the water flows north and there is no Canadian equivalent to the Fifth Amendment. Arguably the biggest difference in land use law between Canada and the U.S. is that we have no constitutionally protected property rights in Canada. Of suprise to many of you and, indeed, to many landowners in Canada, this approach to land use regulation allows provincial and local governments to restrict virtually all use of land without compensating the property rights holder for loss of land value as long as the regulation is in the public interest. As Justice Cromwell of the Supreme Court of Canada reasoned in Mariner Real Estate Ltd. v Nova Scotia (Attorney General), (1999) 177 D.L.R. (4th) 696, 178 N.S.R.(2d) 294 (NSCA) when he was a judge of the Nova Scotia Court of Appeal in a judgment that thoroughly canvassed this area of law (at paras. 41-42):

These U.S. and Australian constitutional cases concern constitutional limits on legislative power in relation to private property. As O'Connor, J. said in the Unites States Supreme Court case of Eastern Enterprises v Apfel 118 S. Ct. 2131 (U.S. Mass. 1998), the purpose of the U.S. constitutional provision (referred to as the "takings clause") is to prevent the government from "...forcing some people alone to bear public burdens which, in all fairness and justice, should be born by the public as a whole." Candian courts have no similar broad mandate to review and vary legislative judgments about the appropriate distribution of burdens and benefits flowing from environmental or other land use controls. In Canada, the courts' task is to determine whether the regulation in question entitles the respondents to compensation under the Expropriation Act, not to pass judgment on the way the Leiglature apportions the burdens flowing from land use regulation.

In this country, extensive and restrictive land use regulation is the norm. Such regulation has, almost without exception, been found not to consitute compensable expropriation.

However, the principle that a government or expropriating entity must pay compensation when expropriating an interest in property is alive and well in Canada. Its foundation rests in the royal perogative, powers bestowed on the Crown or government from the common law, and the common law principle that unless a statute explicitly provides, it is not to be construed as taking away property without just compensation (Attorney General v DeKeyser's Royal Hotel [1920] A.C. 508 H.L.). As a common law principle for which the courts have set a high bar when testing whether regulatory behaviour equals regulatory or de facto expropriation. The claimant must prove that:

1. The legislation or government action must so restrict a landowner's enjoyment of property as to constitute confiscation an interest in property; and

2. That interest in property must be acquired by the Crown (government).

It is the second part of the test that is the hardest to meet. Courts have found that simply benefitting Crown land such as a park is not sufficient to prove acquisition by the Crown.

In many provinces this common law rule is codified in a modified form in provincial land use law. For example, sections 914 of the Local Government Act in British Columbia and 621 of the Alberta Municipal Government Act state that no compensation will be paid for changes in the value of land caused by specified decisions made under a land use bylaw or permitting function. It is only when regulation takes away virtually all incidents of private ownership that the regulation will be found to be improper. The precise wording in British Columbia under s.914 is:

(1) Compensation is not payable to any person for any reduction in the value of that person's interest in land, or for any loss or damages that result from

(a) the adoption of an official community plan or a bylaw under this Division [zoning and other development regulation] or the issue of a permit under Division 9 [development permit] of this part,


(2) Subsection (1) does not apply where the bylaw under this Division rstricts the use of land to a public use.

These regulatory or de facto expropriations are few and far between in Canada. Although we hear about successfully argued "takings" cases in the U.S. courts, in Canada a court has never found land use regulation by a local government to result in a regulatory expropriation for which compensation is owed. See Mariner Real Estate Ltd. v Nova Scotia (Attorney General) 1999 CanLII 7241 (NSCA) for an excellent discussion of this area of law, and Canadian Pacific Railway Co. v Vancouver (City) [2006] 1 SCR 227, 2006 SCC 5 for the most recent Supreme Court of Canada discussion in the municipal land use context. Courts have ruled that significantly curtailing development on land that is environmentally sensitive, freezing development, development moratoria, and requirements to plant a vegetated buffer adjacent to a watercourse to protect a drinking water source do not require compensation.

The cases where courts have awarded compensation for loss of an interest in property centre around federal or provincial regulation that essentially prohibits an otherwise existing lawful activity or prevents access to a property right. Several cases in British Columbia award compensation for mineral rights that the provincial government rendered inaccessible upon creating a provincial park [R v Tener [1985 1 SCR 533; Casamiro Resource Corp. v British Columbia (Attorney General), 1991 CanLII 211 (BCCA)]. The classic case is Manitoba Fisheries v The Queen [1979] 1 SCR 101 where the court found a de facto expropriation by the federal government when it enacted legislation that created a monopoly in favour of a Crown corporation dealing with a freshwater fishery that removed all economic viability, including the goodwill, of one business.

Before I seal your view of Canada as the quiet socialist neighbour to the north ("What? No constitutionally protected property rights?") I must add that in practice land use regulation by local governments works much the same in Canada as in most parts of the U.S. Zoning typically awards development potential or development rights, and once an application is submitted to a local government that zoning and other regulations vest. Few local governments attempt to curb growth in any comprehensive way. There is little coordination at a regional scale about where new development will occur, and most cities are challenged with revitalization of a formerly industrialized water front or downtown core that has to compete with the big box periphery. Proposals for a slight increase in residential density in existing neighbourhoods result in an eight hour public hearing, and there is, of course, no accounting for municipal bad taste in what was kind of development council believes is in the public interest. Although we have somehow resisted building freeways through most of our urban centres and do have a few somewhat successful provincial growth management or agricultural land protection law in place (more on that this month), the local politics of land use law often favours individual property rights.

If we conducted a poll I would be willing to wager that most Canadians and, in particular, municipal elected officials believe that compensation is owed if development "rights" are taken away by regulation. Most intersting is the fact that the Canadian law of regulatory expropriation has remained unchanged since land use regulation came into vogue yet it is popularly trumped by the law of eminent domain from the U.S. Perhaps telecommunications law has more impact on land use than land use regulation itself.

November 4, 2014 in Comparative Land Use, Constitutional Law, Development, Eminent Domain, Local Government, Planning, Property, Property Rights, Takings, Zoning | Permalink | Comments (0)

Sunday, November 2, 2014

Welcome to our Second Guest Blogger for November: Jessica Shoemaker!

image from law.unl.edu
Jessica Shoemaker has been on the law faculty at Nebraska since 2012. She has spent a fair amount of time in the Midwest with undergrad at the University of Iowa, law school at the University of Wisconsin, and a Skadden Fellowship for Farmers’ Legal Action Group in Saint Paul. Jessica clerked for the Honorable David M. Ebel on the United States Court of Appeals for the Tenth Circuit and spent five years as an attorney with Arnold & Porter LLP in Denver, Colorado. She has represented Indian tribes, energy developers, entrepreneurs, farmers, and others. She teaches property, Federal Indian Law and a seminar in rural development and energy. Her research focuses on rural land tenure (including Indian land tenure), community economic development, agriculture, and energy. This month, we hope to learn more about land use issues from tribal and rural perspectives. She also works with the University of Nebraska’s new Rural Futures Institute, which perhaps we’ll hear more about this month.


November 2, 2014 | Permalink | Comments (0)

Saturday, November 1, 2014

What's new and what's hot on SSRN...and related to land use

It's the beginning of the month, which means it is time to check in on what's doing over at SSRN.  Here are all the new land use articles posted to SSRN in the last month (search term "land use," time frame "last month"):

1 Incl. Electronic Paper Transferable Sharing Rights: A Theoretical Model for Regulating Airbnb and the Short-Term Rental Market 
Stephen R. Miller 
University of Idaho College of Law - Boise 
Date posted: 
24 Oct 2014

working papers series

2 Incl. Electronic Paper Climate Adaptation Law 
Climate Adaptation Law, in Global Climate Change and Law 677 (ABA Press, Michael B. Gerrard & Jody Freeman eds., 2nd ed. 2014)., Vanderbilt Public Law Research Paper No. 14-36
J. B. Ruhl 
Vanderbilt University - Law School 
Date posted: 
24 Oct 2014

Accepted Paper Series

3 Incl. Electronic Paper Danger Zone: The Causal Effects of High-Density and Mixed-Use Development on Neighborhood Crime 
Tate Twinam 
University of Pittsburgh - Department of Economics 
Date posted: 
13 Oct 2014

Last revised: 
14 Oct 2014

working papers series

4 Incl. Electronic Paper No Price Like Home: Global House Prices, 1870-2012 
CESifo Working Paper Series No. 5006
Katharina Knoll Moritz Schularick and Thomas Michael Steger 
Free University of Berlin (FUB) - Division of Economics , Free University of Berlin (FUB) and University of Leipzig/Institute for Theoretical Economics/Macroeconomics 
Date posted: 
22 Oct 2014

working papers series

5 Incl. Electronic Paper The Smart Growth Agenda: A Snapshot of State Activity at the Turn of the Century 
21 St. Louis U. Pub. L. Rev. 271 (2002), Touro Law Center Legal Studies Research Paper Series
Patricia Salkin 
Touro College - Jacob D. Fuchsberg Law Center 
Date posted: 
25 Oct 2014

Accepted Paper Series

6 Incl. Electronic Paper From Euclid to Growing Smart: The Transformation of the American Local Land Use Ethic into Local Land Use and Environmental Controls 
20 Pace Envtl. L. Rev. 109 (2002), Touro Law Center Legal Studies Research Paper Series
Patricia Salkin 
Touro College - Jacob D. Fuchsberg Law Center 
Date posted: 
24 Oct 2014

Accepted Paper Series

7 Incl. Electronic Paper Planners Gone Wild: The Overregulation of Parking 
33 William Mitchell L. Rev. 613 (2007), Touro Law Center Legal Studies Research Paper Series
Michael Lewyn and Shane Cralle 
Touro College - Jacob D. Fuchsberg Law Center and George Washington University - Law School 
Date posted: 
04 Oct 2014

Accepted Paper Series

8 Incl. Electronic Paper Smart Ethics: Ethical Considerations in Promoting Smart Growth Principles 
23 Temple Environmental Law & Tech Journal 63 (2004), Touro Law Center Legal Studies Research Paper Series
Patricia Salkin 
Touro College - Jacob D. Fuchsberg Law Center 
Date posted: 
02 Oct 2014

Accepted Paper Series

9 Incl. Electronic Paper Teaching Government Law & Policy in Law School: Reflections on Twenty-Five Years of Experience 
66 Albany Law Review 993 (2003), Touro Law Center Legal Studies Research Paper Series
Patricia Salkin 
Touro College - Jacob D. Fuchsberg Law Center 
Date posted: 
02 Oct 2014

Accepted Paper Series

10 Incl. Electronic Paper The Law of Sprawl: A Road Map 
25 Quinnipiac L. Rev. 147 (2006), Touro Law Center Legal Studies Research Paper Series
Michael Lewyn 
Touro College - Jacob D. Fuchsberg Law Center 
Date posted: 
04 Oct 2014

Accepted Paper Series

11 Incl. Electronic Paper Land Use Law Update: The Court of Appeals Issues a Victory for Home Rule in Wallach v. Town of Dryden and Cooperstown Holstein Corp. v. Town of Middlefield 
Municipal Lawyer, Summer 2014, Vol. 28, No. 3, Touro Law Center Legal Studies Research Paper
Maureen T. Liccione and Sarah Adams-Schoen 
Jaspan Schlesinger LLP and Touro College - Jacob D. Fuchsberg Law Center 
Date posted: 
24 Oct 2014

Accepted Paper Series

12 Incl. Electronic Paper Local Economic Conditions and the Nature of New Housing Supply 
SERC Discussion Paper No. 164
Christian A. L. Hilber Jan Rouwendal and Wouter Vermeulen 
London School of Economics (LSE) - Department of Geography and Environment , VU University Amsterdam - Department of Spatial Economics and CPB Netherlands Bureau of Economic Policy Research 
Date posted: 
30 Oct 2014

working papers series

13 Incl. Electronic Paper Measure 37 and a Spoonful of Kelo: A Recipe for Property Rights Activists at the Ballot Box 
38 Urban Lawyer 1065 (2006), Touro Law Center Legal Studies Research Paper Series
Patricia Salkin and Amy Lavine 
Touro College - Jacob D. Fuchsberg Law Center and Albany Law School 
Date posted: 
02 Oct 2014

Accepted Paper Series

14 Incl. Electronic Paper SEQRA's Silver Anniversary: Reviewing the Past, Considering the Present, and Charting the Future 
65 Alb. L. Rev. 577 (2001), Touro Law Center Legal Studies Research Paper Series
Patricia Salkin 
Touro College - Jacob D. Fuchsberg Law Center 
Date posted: 
25 Oct 2014

Accepted Paper Series

15 Incl. Electronic Paper Sorting Out New York's Smart Growth Initiatives: More Proposals and More Recommendations 
8 Alb. L. Envtl. Outlook 1 (2002), Touro Law Center Legal Studies Research Paper Series
Patricia Salkin 
Touro College - Jacob D. Fuchsberg Law Center 
Date posted: 
24 Oct 2014

Accepted Paper Series

16 Incl. Electronic Paper The Politics of Land Use Reform in New York: Challenges and Opportunities 
73 St. John's L. Rev. 1041 (1999) , Touro Law Center Legal Studies Research Paper Series
Patricia Salkin 
Touro College - Jacob D. Fuchsberg Law Center 
Date posted: 
25 Oct 2014

Accepted Paper Series

17 Incl. Electronic Paper Alternative Learning Formats in a Land Use Seminar 
2 Pace Envtl. L. Rev. On-Line Companion 129 (2011), Touro Law Center Legal Studies Research Paper Series
Michael Lewyn 
Touro College - Jacob D. Fuchsberg Law Center 
Date posted: 
04 Oct 2014

Accepted Paper Series

18 Incl. Electronic Paper Character Counts: The 'Character of the Government Action' in Regulatory Takings Actions 
40 Seton Hall L. Rev. 597 (2010), Touro Law Center Legal Studies Research Paper Series
Michael Lewyn 
Touro College - Jacob D. Fuchsberg Law Center 
Date posted: 
03 Oct 2014

Accepted Paper Series

19 Incl. Electronic Paper Smart Growth and Sustainable Development: Threads of a National Land Use Policy 
36 Val. U. L. Rev. 381 (2002), Touro Law Center Legal Studies Research Paper Series
Patricia Salkin 
Touro College - Jacob D. Fuchsberg Law Center 
Date posted: 
24 Oct 2014

Accepted Paper Series

20 Incl. Electronic Paper Why (and How) Conservatives Should Support Smart Growth 
42 Real Est. L.J. 388, Winter 2013, Touro Law Center Legal Studies Research Paper Series
Michael Lewyn 
Touro College - Jacob D. Fuchsberg Law Center 
Date posted: 
03 Oct 2014

Accepted Paper Series

21 Incl. Electronic Paper 중국 토지공급체계의변화와 개혁과제 (China's Land Supply System and its Reform) 
KIEP Research Paper No. Policy References-13-02
Pil Soo Choi and Sungchan Cho 
Korea Institute for International Economic Policy and Independent 
Date posted: 
31 Oct 2014

working papers series

22 Incl. Fee Electronic Paper A Financial and Environmental Analysis of Constructed Wetlands for Industrial Wastewater Treatment 
Journal of Industrial Ecology, Vol. 18, Issue 5, pp. 631-640, 2014
Johnathan L. DiMuro France M. Guertin Rich K. Helling Jessica L. Perkins and Scanlon Romer 
The Dow Chemical Company , Dow Chemical Company (Raleigh) , The Dow Chemical Company , The Dow Chemical Company and Delta College 
Date posted: 
20 Oct 2014

Accepted Paper Series

23   Consensus and Contention in the Food-Versus-Fuel Debate 
Annual Review of Environment and Resources, Vol. 39, pp. 271-294, 2014
Mark W. Rosegrant and Siwa Msangi 
International Food Policy Research Institute (IFPRI) and International Food Policy Research Institute 
Date posted: 
25 Oct 2014

Accepted Paper Series

24   Human Appropriation of Net Primary Production: Patterns, Trends, and Planetary Boundaries 
Annual Review of Environment and Resources, Vol. 39, pp. 363-391, 2014
Helmut Haberl Karl-Heinz Erb and Fridolin Krausmann 
Alpen Adria University , Alpen Adria University and Alpen Adria University - Institute of Social Ecology 
Date posted: 
25 Oct 2014

Accepted Paper Series

25   Memorial Gardens as Parks and Cemeteries 
Forthcoming, 43 Real Estate Law Journal (Spring 2015)
Bernie D. Jones 
Suffolk University Law School 
Date posted: 
08 Oct 2014

Accepted Paper Series

26   Sino-African Foreign Direct Investment in Land: Problems and Prospects 
In-Country Determinants and Implications of Foreign Land Acquisitions’, IGI Global, New York, Forthcoming, 
Oluyomi Ola-David 
Covenant University 
Date posted: 
06 Oct 2014

Accepted Paper Series

27 Incl. Fee Electronic Paper Space and the Measurement of Income Segregation 
Journal of Regional Science, Vol. 47, Issue 2, pp. 255-272, 2007
Casey J. Dawkins 
Virginia Polytechnic Institute & State University 
Date posted: 
24 Oct 2014

Accepted Paper Series

28 Incl. Fee Electronic Paper Welfare Benefits of Agglomeration and Worker Heterogeneity 
CEPR Discussion Paper No. DP10216
Coen N. Teulings Henri L. F. de Groot and Ioulia V. Ossokina 
Tinbergen Institute , VU University Amsterdam - Department of Spatial Economics and Erasmus University Rotterdam - General Economics 
Date posted: 
21 Oct 2014

working papers series

Here are the Top 10 downloads on the SSRN State & Local Government eJournal over the last 60 days:


1 216 It's a 'Criming Shame': Moving from Land Use Ethics to Criminalization of Behavior Leading to Permits and Other Zoning Related Acts 
Patricia Salkin and Bailey Ince 
Touro College - Jacob D. Fuchsberg Law Center and Touro College - Jacob D. Fuchsberg Law Center 
Date posted to database: 5 Sep 2014 
Last Revised: 5 Sep 2014
2 100 End Game? New Proposed Florida High School Athletics Drug Testing Plan May Test the Limits of Supreme Court Rulings. 
John T. Holden 
Florida State University 
Date posted to database: 21 Aug 2014 
Last Revised: 16 Sep 2014
3 100 The American Criminal Code: General Defenses 
Paul H. RobinsonMatthew KussmaulCamber StoddardIlya Rudyak and Andreas Kuersten 
University of Pennsylvania Law School, University of Pennsylvania Law School - Student/Alumni/Adjunct, White & Case LLP, University of Pennsylvania Law School - Student/Alumni/Adjunct and Government of the United States of America - National Oceanic & Atmospheric Administration (NOAA) 
Date posted to database: 13 Sep 2014 
Last Revised: 22 Sep 2014
4 89 Federalism and Municipal Innovation: Lessons from the Fight Against Vacant Properties 
Benton C. Martin 
Emory University School of Law 
Date posted to database: 15 Sep 2014 
Last Revised: 3 Oct 2014
5 89 The War on Drugs and Prison Growth: Limited Importance, Limited Legislative Options 
John F. Pfaff 
Fordham University School of Law 
Date posted to database: 16 Sep 2014 
Last Revised: 16 Sep 2014
6 71 Corporate Inversions and the Unbundling of Regulatory Competition 
Eric L. Talley 
University of California, Berkeley - Boalt Hall School of Law 
Date posted to database: 20 Oct 2014 
Last Revised: 30 Oct 2014
7 70 Protecting Political Participation Through the Voter Qualifications Clause of Article I 
Franita Tolson 
Florida State University - College of Law 
Date posted to database: 26 Aug 2014 
Last Revised: 11 Sep 2014
8 65 Evidence-Based Corporate Law 
J. Travis Laster 
Court of Chancery of the State of Delaware 
Date posted to database: 18 Aug 2014 
Last Revised: 18 Aug 2014
9 64 Corporate Law after Hobby Lobby 
Lyman Johnson and David Millon 
Washington and Lee University - School of Law and Washington and Lee University - School of Law 
Date posted to database: 10 Oct 2014 
Last Revised: 14 Oct 2014
10 59 Observing Change: The Indian Child Welfare Act and State Courts 
Kathryn Fort 
Indigenous Law & Policy Center, Michigan State University College of Law 
Date posted to database: 7 Oct 2014 
Last Revised: 7 Oct 2014

Here are the Top 10 downloads on the SSRN Property, Land Use & Real Estate eJournal over the last 60 days:

1 295 Trying Times: Important Lessons to Be Learned from Recent Federal Tax Cases 
Nancy A. McLaughlin and Stephen J. Small 
University of Utah S.J. Quinney College of Law and Law Office of Stephen J. Small, Esq., P.C. 
Date posted to database: 2 Oct 2014 
Last Revised: 14 Oct 2014
2 220 Intellectual Property Infringement as Vandalism 
Irina D. Manta and Robert E. Wagner 
Hofstra University - Maurice A. Deane School of Law and City University of New York (CUNY) Baruch College Zicklin School of Business Department of Law 
Date posted to database: 24 Aug 2014 
Last Revised: 15 Oct 2014
3 216 It's a 'Criming Shame': Moving from Land Use Ethics to Criminalization of Behavior Leading to Permits and Other Zoning Related Acts 
Patricia Salkin and Bailey Ince 
Touro College - Jacob D. Fuchsberg Law Center and Touro College - Jacob D. Fuchsberg Law Center 
Date posted to database: 5 Sep 2014 
Last Revised: 5 Sep 2014
4 130 Self-Defense Against Robots 
A. Michael Froomkin and Zak Colangelo 
University of Miami - School of Law and University of Miami - School of Law 
Date posted to database: 3 Oct 2014 
Last Revised: 3 Oct 2014
5 126 Rule of Flesh and Bone: The Dark Side of Informal Property Rights 
Stephen Clowney 
University of Arkansas - School of Law 
Date posted to database: 24 Aug 2014 
Last Revised: 18 Sep 2014
6 89 Federalism and Municipal Innovation: Lessons from the Fight Against Vacant Properties 
Benton C. Martin 
Emory University School of Law 
Date posted to database: 15 Sep 2014 
Last Revised: 3 Oct 2014
7 72 Law and Artifice in Blackstone's Commentaries 
Jessie Allen 
University of Pittsburgh - School of Law 
Date posted to database: 25 Sep 2014 
Last Revised: 25 Sep 2014
8 67 BitProperty 
Joshua Fairfield 
Washington and Lee University - School of Law 
Date posted to database: 5 Oct 2014 
Last Revised: 5 Oct 2014
9 56 The Behavioral Law and Economics of Fixed-Rate Mortgages (and Other Just-So Stories) 
Todd J. Zywicki 
George Mason University School of Law 
Date posted to database: 15 Oct 2014 
Last Revised: 27 Oct 2014
10 56 Abuse of Property Right Without Political Foundations: A Response to Katz 
Mitchell N. Berman 
University of Pennsylvania Law School 
Date posted to database: 17 Oct 2014 
Last Revised: 17 Oct 2014

November 1, 2014 | Permalink | Comments (0)

Welcome to our November guest blogger, Deborah Curran

We are pleased to have Deborah Curran (University of Victoria Faculty of Law) as our November guest blogger at Land Use Prof Blog.  Here is Deborah's bio:

Deborah Curran is the Hakai Professor in Environmental Law and Sustainability at the University Deborah Curran of Victoria Faculty of Law. She teaches courses on municipal law and real property transactions, as well as the Environmental Law Clinic – Intensive course. Curran also facilitates a unique field course in environmental law in the Central Coast at the Hakai Beach Research Institute on Calvert Island. As a Program Director with the Environmental Law Centre at UVic, she supervises students working on environmental law projects for community organizations and First Nations.

Curran’s areas of research include water law, growth management and land use law, food systems and agricultural land, and the common ownership of property. As a municipal lawyer who focuses on sustainability issues, she is currently writing on green real estate, local governments and the evolution of water law in Canada.

Welcome, Deborah!

November 1, 2014 | Permalink | Comments (0)

Friday, October 31, 2014

Anderson on NPR discussing Stockton's effort to emerge from bankruptcy

Michelle Wilde Anderson (Stanford) was on NPR's Here and Now today discussing Stockton, California's effort to emerge from bankruptcy.  Listen here:


Description here:

Two years of financial limbo came to an end yesterday in the Northern California city of Stockton. A judge approved the city’s plan to reorganize more than $900 million of debt, which means Stockton can emerge from bankruptcy.

Stockton spent lavishly before the recession on sports venues, public buildings and employee benefits. Those expenditures ended up costing the city dearly. It became the second largest city in the country to file for bankruptcy protection after Detroit, which will learn the fate of its own restructuring plan next week in a Michigan court.

Michelle Wilde Anderson, a law professor at Stanford University, has been following the legal proceedings in both cities and speaks to Here & Now’s Robin Young about the terms of the cities’ reorganization plans, and whether retirees and creditors will get the money they were promised.

October 31, 2014 | Permalink | Comments (0)

Wednesday, October 29, 2014

Addressing cure for “zombie” plague

Zombie house

Vacant properties are a persistent land use issue in the most financially distressed regions, as thousands of properties currently sit empty throughout nation. “Zombie” properties result when a bank begins foreclosure proceedings on a property, and the owner abandons the property before the process can be completed. Existing in limbo until the foreclosure paperwork is finally finished, the properties sit rotting for years, attracting unsavory activities and decreasing neighborhood property values. In Newburgh, N.Y., alone, ten percent of all homes are in some state of abandonment, and many of these properties are zombie properties based on the Land Use Law Center’s study of confirmed vacant properties in Newburgh. Other cities that have experienced an industry exodus, such as Poughkeepsie (for which the Center has conducted a similar study), Niagara FallsBuffalo, and even Westchester County localities face a similar plight and are eager to begin taking substantive steps to resolve them.

Jessica Bacher, Executive Director of Pace Land Use Law Center, has been a key player in the process of property remediation in localities struggling with vacant properties. She serves as Chair of the ABA State and Local Government Section’s Distressed Properties Sub-Committee of the Land Use Planning & Zoning Committee, and her forthcoming article in the Urban Lawyer, A Local Government’s Strategic Approach to Distressed Property Remediation, co-authored with Meg Byerly Williams, discusses this issue in detail. In Newburgh specifically, Jessica has worked closely with city staff and local non-profits on code enforcement best practices, the development of one of the first land banks in New York State, and creation and amendment of local laws to better address the concerns posed by vacant properties.

Vacant properties also have caught the attention of the New York Attorney General’s Office. The Attorney General strongly advocates legislation that directly addresses the vacancy issues faced by localities, and the legislature will consider this legislation again in January 2015 during the new legislative session. The legislation will require banks to register vacant properties in a central database and pay for their upkeep. Jessica believes this is a crucial step to effectively address the vacancy issue: “a statewide registry would alleviate a significant local burden and shed light on an issue that until now has gone almost unnoticed. The registry would help to clarify the extent of the problem, so appropriate strategies and enforcement techniques can be developed and deployed.” The bill also creates a standardized definition of the term “abandonment,” provides guidelines for determining abandonment, requires banks to provide notice to those residing in foreclosed properties that they have a right to remain in the property until the conclusion of the foreclosure proceedings, and imposes penalties on banks that do not wrap up their foreclosure proceedings in a timely manner (up to $1,000 per day). If passed in the upcoming legislative season, the bill will ease the uphill battle localities face when addressing vacant property issues.

John R. Nolon



October 29, 2014 | Permalink | Comments (0)

Tuesday, October 28, 2014

The Living New Deal: All New Deal projects on one map

My colleague and compatriate in maps, Lee Dillion, alerted me to an extraordinary website that is seeking to catalogue, map, and provide a short description of all the major art and architecture projects of the New Deal.  The website is called The Living New Deal and the research is headquartered at UC Berkeley's Department of Geography.  Here is how the site describes itself:

In the depths of the Great Depression, President Franklin D. Roosevelt promised the American people a “New Deal.” Over the decade 1933-43, a constellation of federally sponsored programs put millions of jobless Americans back to work and helped to revive a moribund economy. The result was a rich landscape of public works across the nation, often of outstanding beauty, utility and craftsmanship.

This map artistically documents projects by just one New Deal agency, the PWA.

Map of PWA projects
This map artistically documents projects by just one New Deal agency, the PWA.

No city, town, or rural area was untouched by the New Deal.  Hundreds of thousands of roads, schools, theaters, libraries, hospitals, post offices, courthouses, airports, parks, forests, gardens, and artworks—created in only one decade by our parents and grandparents—are still in use today.  The long-term payoff from this public investment helped propel American economic growth after the world war and is still working for the American people today.

Because these public works were rarely marked, the New Deal’s ongoing contribution to American life goes largely unseen. Given the scale and impact of the Roosevelt years across America, it seems inconceivable that no national register exists of what the New Deal built.  The Living New Deal is making visible that enduring legacy.

Church Street School Bas-Relief

Church Street School Bas-Relief
Church Street School Bas-Relief

Today, our team is building a national database of thousands of documents, photographs, and personal stories about public works made possible by the New Deal.  And it’s all just a click away on our national map of New Deal public works sites. California’s leading historian and former State Librarian, Kevin Starr, has likened the Living New Deal to a WPA project from the 1930s in its ambition and scope.

Far from an antiquarian exercise, the Living New Deal aims to help preserve New Deal art and architecture from destruction or privatization, to see that New Deal sites are properly marked, and to help communities and families across the nation rediscover their heritage.

The Living New Deal is even more timely because of the worldwide economic crisis of 2008-2012, which has invited so many comparisons with the Great Depression of the 1930s, as well as calls for similar government programs to revive the economy and relieve the severe unemployment and financial suffering of millions of Americans.  For five years the unemployment rate hovered near 10 percent, wages stagnated, home foreclosures were epidemic, and national growth anemic.  Unlike the Great Depression, however, many government programs shrank, infrastructure continued to decay, and the wealthiest 1% gained a larger share of national income.

The legacy of the New Deal has much to teach about farsighted leadership and what can be achieved when our country rallies to serve needs of ordinary people in troubled times.  What is more, it provides a shining example of what positive government can achieve when it invests in public works that serve the collective good.  Yes, government can work for all the people by creating useful infrastructure, job for the unemployed, and things of beauty like public murals and elegant buildings.

Canal Street Post Office Sculpture

Canal Street Post Office Sculpture, 2013
Canal Street Post Office Sculpture
Photo Credit: Evan Kalish © All Rights Reserved

The research arm of the Living New Deal is hosted by the Department of Geography at the University of California, Berkeley.  The public service branch of the Living New Deal is a California non-profit organization.  The Living New Deal is funded by a mix of public grants and private donations.

A really fun site!

Stephen R. Miller

October 28, 2014 | Permalink | Comments (0)

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